MUTHUSAMI SERVAI Vs. NKMYTHEEN PICHAI ROWTHER

JUDGEMENT

(1.) The first defendant and the father of defendants 2 and 3 received subscriptions from the plaintiff for the conducting of a lottery, presumably advertised and conducted in the usual way. There can be no doubt, after Sesha Aiyar V/s. Krishna Aiyar (1935) 70 M.L.J. 36 : I.L.R. 59 Mad. 562 (F.B.) that the father of defendants 2 and 3 would have been liable to refund to the plaintiff his subscriptions. The only question that arises in this petition is whether the defendants 2 and 3 are liable for this sum out of the joint family property that has come into their hands. The District Munsiff of Sivaganga has held that they are. Hence this Civil Revision Petition by defendants 2 and 3.

(2.) The argument of the learned District Munsiff is in brief that the plaintiff's claim has no reference to an illegal contract and that as the father of defendants 2 and 3 was under a civil liability to return the money to the plaintiff, defendants 2 and 3 are also liable for that debt. It seems to me that both these statements of law are wrong. The contract between the plaintiff and the father of defendants 2 and 3 was an illegal one and it was in pursuance of that illegal contract that the father of defendants 2 and 3 came into possession of the money. It is true that the return of the money would not be in furtherance of the illegal contract; but that is not the point. The criterion is whether the money was taken for an illegal purpose. Clearly it was.

(3.) Ordinarily, a person who has paid money for the furthering of an illegal object cannot recover that money in a Civil Court; but an exception is made where a contract has been made illegal for the protection of a certain class of persons. In such a case a member of that class is considered not to be in pari delicto with the organiser of the illegal organisation and on that ground is allowed to sue. A subscriber to a kuri has not however that advantage as against the sons of a stake-holder. On the contrary, the subscriber is a party to an illegal contract while the sons of a stake-holder are innocent persons. Even on this ground therefore the plaintiff would have to fail.